CRI/A/108/84 IN THE HIGH COURT OF LESOTHO
In the Appeal of :
NTSOAKELE MONKA Appellant
REASONS FOR JUDGMENT
Filed by the Hon. Mr. Justice B.K. Molai on the 15th
day of May, 1985.
I have already dismissed this appeal and the following
are my reasons for the decision.
The appellant appeared before the Subordinate Court of
Butha-Buthe charged with two counts of Stock Theft on the allegations
Count I "Upon or about the 29th September, 1983
and at or near Boiketlo in the district of Butha-Buthe, the said
wrongfully, unlawfully and intentionally steal one cow
the property or in the lawful possession of Khoboli Raletsoho."
Count II "Upon or about the day between 1st and
30th September, 1983 and at or near Khukhune at Tanarai's in the
Butha-Buthe the said accused did wrongfully, unlawfully
and intentionally steal one horse the property or in the lawful
of Nkosenye Motsekeli."
Although he pleaded not guilty to the charges, the
Appellant was, at the end of the trial, found guilty as charged and
serve a term of 12 months imprisonment on each
It is against both his convictions and sentences that
the Appellant has appealed to this court on the grounds that the
are against the evidence and the sentences excessive. .
2/ The evidence
The evidence of P.W.5, Tpr. Jersy, was that he was a
member of the Stock Theft Unit stationed in Butha-Buthe. During
he was on patrol at Matsoaing when he came to
Appellant's home and noticed a red cow, white underbelly and a
chestnut foal with no
earmarks next to Appellant's house. He asked
the Appellant as to whom those animals belonged and the Appellant
replied that they
were his property. P.W.5 noticed, however,
that the earmarks on the cow were not the same as the earmarks which
had, on an earlier occasion, described as his.
Questioned about that the Appellant told P.W.5 that it was because he
the cow from the Republic of South Africa. The Appellant
could not, however,disclose the name of the seller nor could he
any document as proof that he had bought the cow from some
other person. P.W.5 became suspicious about the legality of the
possesion of the two animals. He nevertheless decided to
leave the animals in the possession of the Appellant while he carried
further investigations about them. When he later returned to the
Appellant's home, P.W.5 found only the foal. The cow was no longer
On further investigations, P.W.5 found the same cow in
the possession of P.W.3 Panya Phetane, who explained that it was the
of the Appellant. P.W.3 testified on oath and confirmed that
the cow was found by P.W.5 in his possession after the Appellant had
lent it to him for ploughing.
According to P.W.5, he then took possession of both the
cow and the foal which he brought to the police pound in Butha-Buthe.
the cow and the foal had, however, subsequently died at the
pound while still in the custody of the police and only their hides
produced as exhibits at the trial.
The Appellant gave evidence on oath and denied knowledge
of the two animals. In particular he denied that P.W.5 ever came to
at his home where he found the cow and the foal which he
(appellant) said were his property. He denied to have told P.W.5 that
had bought the cow from the Republic of South Africa. In fact, on
the day P.W.5 alleged to have come to his home he (Appellant)
in gaol. The Appellant likewise denied the evidence of
P.W.3 that he had lent him the cow for ploughing.
The trial magistrate before whom all witnesses appeared
and testified accepted as the truth the evidence of P.W.5
some extent, by P.W.3 that the animals were found inthe possession of the Appellant. He rejected as false the
Appellant's story that P.W.5 never found him in possession of the two
It was not disputed that P.W.5 was a member of the Stock
Theft Unit in the police force. As such it is in the nature of his
P.W.5 deals with a large number of people. I see no
apparent motive why P.W.5 should pick upon the Appellant and falsely
him in this case. The probabilities are high,
therefore that P.W.5 was testifying to the truth when he told the
Court that he had found the two animals in the possession
Appellant who then explained that they were his property. I am not
prepared to interfere with the finding of the trial magistrate
It is not clear to me why P.W.I, S.T. Smallberg, a
farmer in the Orange Free State province of the Republic of South
Africa was called
as a witness in this case. There was nothing in the
evidence of P.W.5 to suggest that the Appellant, or anybody for that
mentioned him as the person from whom the appellant had
obtained any of the animals,, the subject matter of the present case.
Be that as it may, P.W.1 told the Court that he owned
animals some of which he sold to various people. P.W.I was positive,
that he had never sold any animals to the Appellant whom he
saw for the first time before the trial Court.
The evidence of P.W.2, the complainant,in count 1 was
that one night in September, 1983 he had fastened one of his cows in
It was a red cow, white under-belly with a white brush.
It was earmarked R/E half-moon
4/ behind L/E
behind L/E stump. In the morning he found the cow
missing from the kraal. No one had his permission to take it away
and so he started
a search for the missing cow.
In the course of the search, he came to the police pound
at Butha-Buthe where he identified his missing cow. It then had
earmarks superimposed on his original earmarks. He,
however, had no difficulty in identifying the cow as his property
original earmarks were still partially visible.
Likewise, P.W.4, the complainant in count II, testified
that one evening in September 1983, he tethered his mare together
foal at his home in Khukhune. On the following morning,he
found both the mare and the foal missing. He too had not permitted
one to take away his animals. He, therefore, started searching
for them. One day during the search, he found that the mare had
returned home on its own. He, therefore, continued the search
for only the foal. In January, 1984, he came to the police pound
Butha-Buthe where he identified the missing foal. The foal had not
yet been earmarked and so he identified it by its colours only.
was a chestnut foal with a star, four socks and a whitish brush with
some dark colours.
Both P.W.2 and P.W.4 confirmed the evidence of
P.W.5.that the cow and the foal had since died and only their hides
were before the
trial court as exhibits.
The evidence of P.W.2 and P.W.4 that in September, 1983
they were deprived of their animals without their consent, and,
unlawfully, was not really disputed. In my view, the
trial magistrate rightly accepted it as the truth. That being so,
only issue that remained for the determination of the court was
whether or not the unlawful taking of the animals was done with the
requisite intention to steal i.e. to permanently deprive the
complainants of their property.
For the reasons already explained, I have pointed out
that there was nothing unreasonable in the trial
magistrate accepting, as he did, the evidence of P.W.5
that the animals were, in December, 1983, found in the possession of
who then claimed them as his own property. The
intention to steal is not something that we can reach with any of our
It is a matter of inference from either the acts or
words of the appellant. From the fact that when P.W.5 found the
animals in his
possession, the appellant claimed them as his
property, the only reasonable inference to be drawn was that he (the
the intention to permanently deprive the complainants
of those animals.
I, therefore, came to the conclusion that the answer to
the question whether or not the unlawful taking of complainants'
effected with the requisite intention to steal was in the
affirmative and the trial magistrate correctly found the appellant
as charged on both counts.
The majority of our society still depends heavily on
animals for its day to day life. That accounts for the seriousness of
of Stock Theft. Ironically stock theft is one of the
offences that are committed with monotonous repetition in this
being had to the seriousness of this offence, I was
not convinced that the sentences imposed on the appellant in the
were so harsh or exessive as to call for the
interference of this court.
I came to the conclusion, therefore, that the appeal
ought not to succeed and accordingly dismissed it.
JUDGE 15th May, 185.
For the Appellant : Mr. Phakoane For the Respondent
: Miss Moruthane'.
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